Posted on Fri, Jul. 02, 2010
last updated: March 02, 2011 01:13:59 PM
WASHINGTON — Elena Kagan's 17 hours before the Senate Judiciary Committee hinted at what kind of Supreme Court justice she'll be, and gave senators a chance to maneuver for advantage.
So everyone got something out of the three days during which Kagan answered nearly 700 questions.
"The hearing provides an important platform for the nominee," said Dion Farganis, assistant professor of political science at Elon (N.C.) University and co-author of a study on the hearing process. "And clearly it's a platform that serves the senators' purposes."
The Senate committee is expected to vote on the nomination shortly after Congress returns from its recess on July 12. The panel has 12 Democrats and seven Republicans; Friday, Sen. Orrin Hatch, R-Utah, who in the 1990s backed President Bill Clinton's two nominees, said he'd oppose Kagan.
Since Democrats control 58 Senate seats, confirmation seems assured, probably within a month. The hearing, which concluded Thursday with several panels of outside witnesses, seemed to confirm preconceptions rather than change lawmakers' minds.
Farganis and Justin Wedeking of the University of Kentucky systematically tallied the back-and-forth between Kagan and the committee's 19 members, identifying 695 "exchanges," which each amounted to a question and an answer.
This back-and-forth suggests that:
"Harvard, it's a great institution; some place I couldn't have gotten in," said Republican Sen. Lindsey Graham of South Carolina, who potentially could vote for Kagan.
"I would have taken you," Kagan said.
At another point, she offered a cautionary note about letting television cameras into the Supreme Court.
"It means I'd have to get my hair done more often, senator," Kagan said.
Beyond Kagan, the hearings served as important political theater five months before November's congressional elections.
Democrats were trying to show that Obama could appoint a thoughtful, mainstream woman to the Supreme Court — thereby providing an argument against those who say Obama is too liberal.
And Republicans, though most conceded early in the proceedings that Kagan would be confirmed, still took hours to promote their conservative agenda.
That strategy was most obvious toward the end of the hearings, when Sen. Tom Coburn, R-Okla., one of the Senate's most ardent conservatives, had a colloquy with Kagan about political philosophies.
"We have problems with confidence in our economy, confidence in our government, confidence in Congress," he said, adding later, "We see the unrest, the tension that's out there in the electorate, is that we're not paying attention."
Democrats elaborated on their own points — that Obama understands his constituency, and the appointment of Kagan should be seen as not only a sensitive choice, but also a historic one.
Sen. Dianne Feinstein, D-Calif., recited Kagan's resume, noting how "as the first female dean of Harvard, the first woman to serve as solicitor general, you've certainly broken several glass ceilings."
Like the other justices, Kagan will hire four recent law school graduates to serve as clerks. The Ivy League will almost certainly dominate her picks. Of the 36 Supreme Court law clerks this year, half attended either Harvard or Yale law schools.
Because she has no prior judicial experience, Kagan could follow the practice of some new justices and hire a clerk or two who's worked at the court previously. Wherever the clerks come from, Kagan will work them very, very hard.
"She has a reputation for annihilating the unprepared," former Marine officer and Harvard Law School graduate Robert Merrill told the Judiciary Committee.
In late September, Kagan will meet with her new colleagues for a private conference to decide what additional cases deserve a full hearing.
The court, led by conservative Chief Justice John Roberts Jr. has already agreed to hear 37 cases for the October term, roughly half of the total number of cases likely to be during the year.
Some cases to be heard in what's likely to be Kagan's first term have already captured considerable attention, such as California Gov. Arnold Schwarzenegger's challenge to a court order that he reduce the state's prison population.
In other cases that the court has already agreed to hear, Kagan won't participate because the solicitor general's office has played a role during appellate proceedings. These include a challenge to mandatory minimum prison sentences imposed on armed drug dealers.
The court that Kagan will join is famously split on hot-button issues, but it's also often unified more often than many casual observers think.
The court reached 46 percent of the decisions issued during the recently concluded term on a 9-0 vote, compared with 38 percent in 2006. The court split on a 5-4 margin in 18 percent of the term's decisions, compared with 33 percent in 2006.
The hearings suggest that Kagan will enter from the left.
"In terms of my political views, I've been a Democrat all my life," Kagan noted, adding that "my political views are generally progressive."
MORE FROM MCCLATCHY
McClatchy Newspapers 2010